TaxTMI 
TaxTMI 
2018 (9) TMI 1456
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....e under these two agreements. Hence, it is pleaded that the petitioner was constrained to terminate the agreements by issuing a termination letter dated 20.11.2006. 3. It is further pleaded that as the agreements were governed by the laws of Republic of Singapore, the petitioner filed a recovery suit before the High Court of Republic of Singapore. Despite summons being served on the respondent, the respondent failed to appear before the High Court of Republic of Singapore. Accordingly, the High Court of Republic of Singapore delivered its judgment on 27.05.2011 directing the respondent to pay the following payments being US$350,672.12 alongwith interest etc. Plus US$141,010.34 and cost on indemnity bond at SG$6,351.70. Thereafter, the petitioner has issued a notice for statutory winding up on 26.07.2011. The respondent had sent its reply on 03.08.2011 denying its contents. 4. I have heard the learned counsel for the parties. 5. The learned counsel for the petitioner has relied upon the judgment of this court in the case of Ex.Sud Ltd. v. Indian Aluminium Cables Ltd., (2005) 1 ILR (Del) 275 to contend that on the basis of a foreign decree, a winding up petition would lie....
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....held as follows: "6. As would be clear from the respective cases of the parties, following two questions would arise for consideration: (a) Whether the winding up petition would be maintainable on the basis of a foreign decree? To put it differently, whether it is necessary on the part of the holder of a foreign decree to seek execution of the decree under Section 44-A of the CPC? This assumes importance because in such an execution, when filed, the judgment debtor can contest the foreign decree on various grounds, including the grounds stated in Section 13 of the CPC. Therefore, according to the company, a foreign decree which is not automatically enforceable cannot be a basis for instituting winding up petition also as it would not be an evidence of any 'debt'. (b) Even if it is treated that such a petition is maintainable, whether this Court can go into the question of validity of such a decree on the touchstone of Section 13 of the CPC? xxxxx 19. With respect, I am in complete agreement with the proposition of law laid down in the aforesaid judgments. Once this is to be accepted as the principle of law, the argument of learned senio....
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.... If the argument of learned senior counsel for the petitioner is accepted, it can have far-reaching consequences and the provision for winding up could be misused by obtaining a decree fraudulently, not getting it executed and filing winding up petition and converting it to a coercive mean of extracting money which may otherwise be not payable. Necessarily, therefore, the petitioning creditor will have to meet the challenge of the judgment debtor/company when validity of the said decree is questioned on such grounds. I may hasten to and that it is not that while examining such issue, frivolity of the respondent company is to be entertained. However, the minimum which the Company Court would be required to do is to test the defence/submission of the company from the point of view germane to these proceedings, namely, whether the debt is disputed on bona fide grounds. In the context of a foreign decree, that would mean going into the said decree with reference to Section 13 of the CPC to find out whether only plausible defence is raised which needs examination. Otherwise, the effect would be to shut the very remedy available to such judgment debtor if execution petition is filed and ....
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....ment reads as follows: "Section A: Particulars of Applicant Name: APM Infotech Pvt. Ltd. Certificate of Incorporation/Business Registration No. Correspondence Address: B 24-25, Sector-1, Noida-210301- India Postal Code_____ Name of the Authorised Officer of the applicant: Mr.Arun Maini Designation Director NRIC/Passport No. Section B: Billing New Account Billing Address (if different from correspondence address) B-24-25, Sector-1, Noida-210301- India Postal Code: Billing Currency: S$ US$ Others. Please specify _________USD Charge to Existing A/c No. Billing Frequency: Monthly Quarterly. Section C For clarification of this application Sing Tel should contact: Name: Mr.Arun Maini Tel/Mobile +91 9811032234 Email address: [email protected] and [email protected]." 13. The case of the petitioner is that a request was made of service on the respondent at the address at Noida and also at F-65, Green Park Main, New Delhi 110 016. However, as per report available, the service was sought to be effected only at F-65, Green Park Main, New Delhi and not at the Noida address as stated in the agre....
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....e effected only on an adult member of the family of the party. Process server has therefore, to take care and caution on noting down the name and details of the adult member of the family." 16. Clearly the manner in which the service was allegedly affected on the respondent does not prima facie inspire any confidence. 17. Further the notice by an email was also sent at [email protected]. A perusal of the additional affidavit filed by the petitioner would show that this was the email address mentioned on the official website of the Ministry of Corporate Affairs and hence the email was sent at the said address. The learned counsel for the respondent has clarified that Mr.V.K.Gupta is a Chartered Accountant of the respondent company and is not authorised to accept the summons on behalf of the respondent company. 18. I cannot help noticing that as per the agreement, the service was to be effected at "[email protected] or [email protected]." Instead, the petitioner has chosen to serve the respondent on a completely different domain name, namely, [email protected]. Merely because the e-mail address [email protected] was the e-mail available on the webs....